An unlikely conviction

76994258_76994257While it is unusual for a grand jury to refuse an indictment we should not mistake satire for a standard of justice to which we should aspire. When Tom Wolfe wrote in Bonfire of the Vanities that a grand jury would indict a ham sandwich if a prosecutor asked it to, he did not mean this as praise. It was, well, an indictment of American justice that this should be the case. That a grand jury has asserted its right not to indict is hardly something we should condemn. Grand juries should do this more often. Otherwise, what are they for?

The standard for an indictment is supposed to be a high one. “Probable cause” is a higher standard than is required in most other common law jurisdictions. Empowering grand juries to reject frivolous or vexatious prosecutions is a key protection of liberty. In the case of Darren Wilson, the police officer who shot and killed Michael Brown, the probability of successful prosecution was extremely small, so it would not be unreasonable to classify prosecution as vexatious.

Missouri law does not require a grand jury – as federal law does – in such instances. The prosecutor could have put the matter before a judge. Going to a grand jury was, probably, a political decision designed to pass the buck. Prosecutors and judges would not wish to offend either the African-American vote or the police union. Prosecutor, Robert McCulloch, holds an elected position. As a Democrat, both of these constituencies are critical to his future career. 

Demonstrators in New York need to take account of the fact that a prosecution would have been no more likely to succeed in their state than in Missouri. The burden of proof is the same – beyond reasonable doubt. While some states cleave to the idea that self-defense is an affirmative defense – meaning the defendant has to prove, on the balance of probability, that he was acting in the reasonable belief that his actions were necessary to defend himself or others – New York is one of the states keeps the burden of proof on prosecutors to demonstrate that the defendants actions were not self-defense.

Given the contradictory accounts as to the events which led up to Michael Brown’s shooting, and given the fact that Darren Wilson had good reason to believe that Michael Brown was one of those who had just been reported as having violently robbed a local store, there are solid indicators that he had a good basis for acting in self-defense. Not only did he have reason to believe that Brown was the violent criminal of earlier that evening, we now know that he was correct in that belief, as video evidence of Brown assaulting the store clerk has emerged.

Faced with two accounts that are equally compatible with physical evidence no responsible jury could have found Wilson guilty beyond reasonable doubt. 

The “ham sandwich” standard should be rejected. Cases should proceed only on probable cause. To proceed with a prosecution that cannot possibly succeed is vexatious and amounts to little more than harassment. The African-American community might regret this particular decision. But what are the consequences of rejecting the protection of civil liberties? If criminal justice is slanted against black people, then who will suffer most if such harassment is legal?

qlQuentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at

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